Billboards: New state law could curb cities' input

Public hearing is scheduled for Oct. 18

The changes might not be noticeable at 65 miles per hour. But if you get close enough to certain billboards in Durham, you can clearly see how recent amendments to the state laws regarding outdoor advertising are affecting the landscape.

The portion of the law that most directly affects Durham, which has its own strict billboard ordinance, governs how the state manages green space near billboards adjacent to highways.

Near the intersection of Grant and Pettigrew streets, a double-sided billboard juts into the sky just above the Durham Freeway overpass. Across the street, behind the John Avery Boys & Girls Club, what was once a small grove of bushes and trees has recently been removed, its remnants left to serve as mulch.

"This isn't being done out of any environmental necessity," says Ryke Longest, director of the Duke Environmental Law and Policy Clinic. "This is all about giving commuters more time to see billboard advertisements."

In writing and at a series of public meetings held over the summer, Longest and his allies at Scenic NC have competed with representatives from the outdoor advertising industry to shape the state Department of Transportation's "selective vegetation removal" policy.

By statute, the removal of trees at billboard sites in a state-owned right-of-way requires a permit from the DOT. One of the major points of contention is a proposed provision that forces billboard owners to submit their applications to local government officials 30 days before the state officials review them.

Longest and other environmental advocates want to see the provision made permanent. They already lost the legislative fight to keep billboard owners from removing even more nearby vegetation.

The final decision comes next month, when the Rules and Review Commission of the state Office of Administrative Hearings determines whether the notification rule and others proposed by the state conform to the amended law.

The final version of those rules provides local governments the option of having 30 days to review each application and submit an opinion to the DOT. That brings the maximum processing time for each application to 60 days.

To Longest and other advocates for the rule, the additional time is "critical." It's the municipal staffers who Longest says will "know about and care about environmental issues around the city because they have an eye for what particular issues may prevent removal of vegetation."

Opinions vary, however. "Our position is that the process should resolve in 30 days," says Tony Adams, executive director of the Outdoor Advertising Association of North Carolina.

Pressed on what the harm is to giving the municipalities 30 days to consider the applications, Adams says, "It's not necessary that it take longer."

Statewide, there are an estimated total 8,000 outdoor billboards. In 2011, Adams, along with commercial billboard owners like Fairway, scored a major victory when the General Assembly passed legislation, Senate Bill 183, amending the rules for trimming the trees that stand in front of billboards on state-owned property adjacent to state highways.

The law ushered in a host of changes, the most significant of which was the provision that enlarges the zone around billboards that can be cleared of trees and other greenery.

Prior to the bill's approval, billboard owners could cut vegetation up to 250 feet in the front of the billboard.

After the law passed, the limit was extended to 380 feet for rural, DOT-owned roads and 340 feet for DOT-owned roads within city limits.

But the end of the legislative battle simply set the stage for another, albeit quieter, one. Municipalities have to sign up to be notified about the permit applications. In DOT highway Division No. 5, which spans Durham, Franklin and Wake counties, Raleigh, Durham and Cary are the only cities that have.

In Durham, applications are reviewed as they are submitted by a group of staffers from various city departments, says Teri Danner, a supervisor in Durham's planning department.

Durham Planning Director Steve Medlin says that municipal review does indeed have value. "It's the part of checks and balances that gives us the ability to ensure the billboard companies are following all of the criteria," Medlin says.

So far, the city has reviewed just six applications. Asked if the city has opposed any of those applications, Medlin says, "In some cases, we've expressed our concern."

If DOT projections are accurate, the city could receive a lot more. The state will issue a projected 750 vegetation removal permits before 2012 is over, says a financial impact study issued by the DOT earlier this year. According to the fiscal study, from 2000 to 2010, before the new rules went into effect, the department issued an average of just 250 permits per year.

Durham may have only a limited number of billboards that fall under the umbrella of the new rules, says Medlin. "I think all of the applicable sites we've already received applications for," he says.

This isn't Durham's first foray into the fight over billboard advertisements. Two years ago, the Durham City Council voted unanimously to uphold a city ordinance banning digital billboards inside the city limits, a measure opposed by commercial billboard owners. An ordinance banning the construction of new billboards has been in place in Durham since 1984.

Depending on what the state rules commission decides, the outdoor advertising industry and individual billboard owners may be dissatisfied with the outcome. Speaking on behalf of the Outdoor Advertising Association, attorney Craig Justus called parts of the rules "unclear," adding that they could be "fodderable for litigation," according to a transcript of an August DOT public hearing on the rules changes. Justus could not be reached for comment.

State law provides individual billboard owners who have been denied cutting permits a chance to appeal to the Office of Administrative Courts. "In that situation, I would consider an appeal from an individual owner very likely," Longest says.

A public hearing is scheduled for Oct. 18, before the state rules commission on selective vegetation removal decides on the policy.

This article appeared in print with the headline "Trees vs. billboards."